CONTRACTS: PARTLY WRITTEN, PARTLY ORAL — TERMS DISPUTED

CONTRACTS: PARTLY WRITTEN, PARTLY ORAL — TERMS DISPUTED

The plaintiff instituted an action for the recovery of the full contractual losses payment it allegedly suffered. The first claim was premised on the outstanding portion of the agreed price for the supply and delivery of three communication trailers.  The second claim was for costs incurred to transport the first of the trailers by air instead of by sea due to the allegation that it was requested to do so by the defendant. The defendant denied liability for both claims, contending that the plaintiff did not supply and deliver what was agreed. The defendant further instituted a counterclaim based on alterations it had to do on two of the communication trailers supplied by the plaintiff as they were not in line with the specifications agreed upon in November 2014.

OOSTHUIZEN J analyzed the pleadings, the counterclaim, and evidence of both parties, applied the law, and stated that the context in which a document is drafted is relevant to its construction in all circumstances.  Interpretation is a unitary exercise in which both text and context are important. The court also looks at the knowledge the parties had at the time the contract was concluded. The plaintiff was at pains to explain the contemporaneous actions and written communications between the parties in order to fit the plaintiff’s alleged terms of the agreements into the overall evidential landscape.’

In the result, the court found that:

1. The plaintiff failed to prove its main claim and also failed to prove its second claim, and both claims were dismissed.
2. The defendant proved that the plaintiff did not comply with its contractual obligations to deliver three C-band capable satellite trailers.
3. The defendant proved its entitlement to do the conversion of the two KU-band trailers to C-band capable trailers at the cost of the plaintiff, and thereby its counterclaim succeeded.
4. The plaintiff was ordered to pay the amount of N$618 850 to the defendant plus interest.

Globe Electronics Business Sytems v Telecom NAHCMD 13 July 2022